Com. v. Clark

Decision Date15 May 1998
Citation551 Pa. 258,710 A.2d 31
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Ronald CLARK, Appellant.
CourtPennsylvania Supreme Court

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710 A.2d 31
551 Pa. 258
COMMONWEALTH of Pennsylvania, Appellee,
v.
Ronald CLARK, Appellant.
Supreme Court of Pennsylvania.
Argued Jan. 27, 1997.
Decided April 2, 1998.
Reargument Denied May 15, 1998.

Page 33

[551 Pa. 264] Susan V. Kahn, Pittsburgh, for R. Clark.

Catherine Marshall, Karen A. Brancheau, Philadelphia, for the Com.

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Robert A. Graci, Harrisburg, for Office of the Atty. Gen.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This case comes before the Court as a direct appeal following the imposition of a sentence of death. 1 On December 2, 1994, a jury found appellant guilty of first degree murder, 2 criminal conspiracy, 3 and possession of an instrument of [551 Pa. 265] crime. 4 Subsequently, the jury considered the evidence presented at the penalty phase hearing and imposed a sentence of death. The jury found one aggravating circumstance, that the defendant had a significant history of felony convictions involving the use of threat of violence to the person, 5 and no mitigating circumstances. 6

In all cases where the sentence of death has been imposed this court will conduct an independent review of the sufficiency of the evidence supporting the verdict of guilt on the charge of first degree murder even where the defendant does not challenge the verdict. Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439 (1995). As in all cases where an appellate court reviews the sufficiency of the evidence, the test to be applied is whether, viewing all the evidence in the light most favorable to the verdict winner, there is sufficient evidence to enable the trier of fact to find every element of the crime of first degree murder beyond a reasonable doubt. Commonwealth v. Jasper, 531 Pa. 1, 610 A.2d 949 (1992). In order to prove murder of the first degree the evidence must show that a human being was unlawfully killed, that the accused committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). The element which distinguishes first degree murder from all other degrees of criminal homicide is the presence of a willful, premeditated and deliberate intent to kill. Specific intent to kill may be inferred from the use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931 (1992).

At approximately 9:30 p.m. on the evening of October 7, 1993 Aineis Sunn Life and his friend, Kevin Pettiway, were ordering food at the Wayne Junction Deli at 4500 North 20th Street in Philadelphia. While standing in the order line Mr. [551 Pa. 266] Sunn Life asked appellant, who was standing behind him to "back up off me." Appellant replied "Oh, it's like that," and left the Deli. According to the record there was no previous relationship between Mr. Sunn Life and appellant. Kevin Pettiway heard the exchange between Mr. Sunn Life and appellant.

Appellant was observed by Nigel Bell, a man who lived in the vicinity and happened to be a close friend of Mr. Sunn Life, as he exited the Deli. Mr. Bell watched appellant walk away from the Deli to a playground where he spoke with the co-defendant, Kevin Dwight. 7 Mr. Bell knew Mr. Dwight and also knew from prior observations that Mr. Dwight always carried a shotgun inside an umbrella. Mr. Bell saw appellant whisper into Mr. Dwight's ear, and then observed Mr. Dwight hand appellant the umbrella containing the shotgun. Appellant returned to the Deli at a fast pace.

Sherry Taggart, who was employed to sweep the parking lot of the Deli, observed appellant enter the Deli with the umbrella. Ms. Taggart clearly recalled her observation of appellant as it was not raining, thus, she found it strange that he was carrying an

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umbrella. Mr. Pettiway was standing next to Mr. Sunn Life when appellant re-entered the Deli. Mr. Sunn Life was standing at the cash register when appellant held the shotgun to the back of his head and asked Mr. Sunn Life "What you got to say now m_________ ?" Appellant pulled the trigger and Mr. Sunn Life was declared dead at the scene, the result of a massive shotgun blast to the side of his head.

Mr. Bell after observing appellant's encounter with Mr. Dwight in the playground, and hearing the shotgun blast, immediately entered the Deli. It was at that point Mr. Bell realized his friend had been shot. Mr. Bell took Mr. Sunn Life's chain from his neck, to return it to his family, before the police arrived. Mr. Bell exited the Deli and confronted Mr. Dwight about the shooting. Mr. Dwight told Mr. Bell, "Don't worry I'll take care of it." The next day a woman Mr. Bell knew as an associate of Mr. Dwight, brought a shotgun to Mr. [551 Pa. 267] Bell's home. The ballistics expert testified that a shotgun shell recovered from the scene had been fired from the shotgun delivered to Mr. Bell's home the day after the shooting.

Given the circumstances of the crime, the use of a deadly weapon on a vital part of the body, and the positive identification of appellant as the person who entered the Deli carrying the shotgun, the evidence was sufficient to establish appellant's guilt of the crime of murder in the first degree. We now turn to the issues raised by appellant in this appeal.

As appellant raises each allegation in the form of ineffective assistance of trial counsel we will first set forth the standard by which this Court reviews such claims of error. Counsel's stewardship is presumed effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). In order to prevail on a claim of ineffectiveness of counsel appellant must show that counsel's conduct, by action or omission, was of questionable legal soundness; that the conduct complained of had no reasonable basis designed to effectuate the client's interest; and that counsel's conduct had an adverse effect on the outcome of the proceedings. Commonwealth v. Jermyn, 533 Pa. 194, 620 A.2d 1128 (1993).

Appellant's first claim of error relates to the answer provided by the trial court in response to a question of the jury during penalty phase deliberations. The jury inquired as to the meaning of "life imprisonment." The trial court responded to this question as follows:

All right. I'm going to give you as complete a statement as possible, a truthful situation as to what life imprisonment means in Pennsylvania. Life imprisonment, generally speaking, whether imposed by a jury, does not cover any possibility or does not include any possibility of parole. That's the general proposition. That means life without parole.

But there are two things I want to mention to you in that regard. First, the Parole Board at any time can recommend to the Governor to commute the life sentence. That [551 Pa. 268] means commutation of sentence. And if the Governor grants the commutation of sentence, then the Parole Board may grant parole. So there can be a parole under those circumstances.

What percentage of life imprisonment sentences result in commutation of sentence and parole, I can't give you. I don't have accurate statistics which I can take judicial notice on. That possibility exists.

Now, the second thing I want to say with regard to this: I'm giving you the law as it exists this afternoon. What the law will be tomorrow and next week and what it will be next month no one can predict. The State legislature can redefine any of those things at any time, so keep those two factors in mind.

(Notes of testimony, December 5, 1994, pp. 140-41.). Appellant argues that this response by the trial court impermissibly permitted the jury to consider the possibility of commutation and parole; that the response was inaccurate; and that trial counsel was ineffective for failing to object to the content of the response.

Appellant relies upon the decision of this court in Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572 (1944) to assert that the trial court's response herein was per se impermissible. In Mills, this court held that any

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reference to the possibility of parole was an improper consideration for the jury in their deliberation of the defendant's guilt. The rule announced in Mills was consistently followed by the courts in Pennsylvania until the decision of the United States Supreme Court in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

The prosecutor in Simmons argued for the death penalty by stressing the future dangerousness of the defendant, while fully aware that the defendant would not be eligible for parole under state law. The United States Supreme Court found this failure to present the truth to the jury to violate the defendant's due process, and held as follows:

[551 Pa. 269] The state may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.

Simmons at 171, 114 S.Ct. at 2198, 129 L.Ed 2d at 147. In Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995), this court acknowledged the applicability of Simmons to cases in Pennsylvania decided subsequent to Simmons, where the issue of the defendant's future dangerousness was raised. 8 Thus, the per se rule of Mills upon which appellant relies has been superseded.

Our analysis does not end here however, because Simmons was specifically limited to situations where the defendant's future dangerousness is at issue during the penalty phase of the trial. In the instant case it was not the prosecution who argued future dangerousness, rather it was the appellant who argued the opposite to the jury:

MR. LORUSSO: [counsel for appellant] A governor could at some point in Ronald Clark's life decide that his life sentence should be commuted and he should be released. We've heard about that situation in the news with the last elections....

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